Coughlan Civil Pty Ltd v Yarra Ranges SC [2007] VCAT 1923

It is the order of the Tribunal that the decision of the Responsible Authority in permit application No YR-2006/1162 is set aside.[1]

A permit is granted and directed to be issued pursuant to Section 85(1) (b) of the Planning and Environment Act 1987 for the land at 32 and 34 Hoddle Street, Yarra Junction.

Subdivision of the land into 33 lots in accordance with the endorsed plans.

1. Prior to the certification of a plan of subdivision, three (3) copies of plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. The plans must be generally in accordance with the plan substituted by the Tribunal (Drawing No: 70656pp Date 28 August 2007), but modified to show:
   • (a) A plan showing a maximum of 33 lots. The reduction from 38 to 33 lots is to be achieved by combining Lots 17 - 26 into 8 lots and Lots 29 to 38 into 7 lots with broadly identical areas (plus or minus 10%). Some consequential realignment of lot boundaries may occur. Such plan must also show the lengths and bearings and areas of each lot.
   • (b) A Plan of Restriction being created under Section 23 of the Subdivision Act 1988 and being attached to the Plan of Subdivision. The Plan of Restriction must include:
     • (i) Prohibition on the further subdivision of any lot and prohibition on the construction of more than one dwelling on each lot;
     • (ii) The land burdened (lots along the western boundary and lots along the northern boundary in the location of the Eucalyptus fulgens); and
     • (iii) The land benefiting (all other lots in the subdivision).

(The restriction will apply to the areas shown as a vegetation protection zone, and have the form of a vegetation protection zone, where no buildings are to be permitted and no vegetation removal permitted without the approval of the Responsible Authority).

When approved, the plans will be endorsed to form part of this permit.

1. Offset plans to the satisfaction of the Department of Sustainability and Environment must be submitted to and approved by the Responsible Authority. When approved the plans will be endorsed and form part of this permit. The plans must be drawn to scale with dimensions (where appropriate) and three copies must be provided. The offset plans must show appropriate offsets to compensate for the loss of a minimum of 0.6 habitat hectares of vegetation. Offset plans must include details of the following:
   • (a) means of calculating the offsets;
   • (b) locations where offsets will be provided;
   • (c) type of offsets to be provided for each location;
   • (d) details of revegetation including number of trees, shrubs and other plants; species mix; and density;
   • (e) means of interim protection for newly established vegetation until established;
   • (f) methods of permanent protection for the offsets;
   • (g) persons responsible for implementing and monitoring the offset plans;
   • (h) time frames for implementing the offset plans, including a minimum management period of 10 years from first establishment of the offset vegetation; and
   • (i) details of any earthworks, drainage and other works.
2. Prior to the commencement of the subdivision works:
   • (a) Tree protection fences must be erected around the Green Scentbark Eucalyptus fulgens tree on the northern boundary to the extent of the dripline to define a "Tree Protection Zone" and along the eastern side of the 15 metre wide tree protection area along the western boundary.
   • (b) If temporary fences are installed during the construction phase they must be constructed of 1.8 metres chain wire mesh or similar to the satisfaction of the Responsible Authority.
   • (c) The temporary tree protection fences must remain in place until construction is completed. The ground surface of the Tree Protection Zone must be covered by a 100mm deep layer of mulch before the development starts and be watered to the satisfaction of the Responsible Authority.
   • (d) If temporary tree protection fences are installed they must be replaced by permanent fencing prior to the issue of the Statement of Compliance. Such permanent fencing must be designed and constructed to prevent uncontrolled access to these areas (including by machinery and stock) to the satisfaction of the Responsible Authority.
   • (e) Any service connection works to be located in these Tree Protection Zones must be bored under the roots of trees under the supervision of a qualified Arborist.
3. The layout and site dimensions of the proposed subdivision as shown on the endorsed plan(s) must not be altered or modified unless agreed to in writing by the Responsible Authority.
4. Before the statement of compliance is issued under the Subdivision Act 1988, the applicant or owner must pay to the Responsible Authority a sum equivalent to 5 per cent of the site value of all the land in the subdivision.
5. The owner of the land must enter into agreements with the relevant authorities for the provision of water supply, drainage, sewerage facilities, electricity, gas and telecommunication services to each lot shown on the approved plan in accordance with the authority's requirements and relevant legislation at the time.
6. All existing and proposed easements and sites for existing or required utility services and roads on the land must be set aside in the plan of subdivision submitted for certification in favour of the relevant authority for which the easement or site is to be created.
7. This permit will expire if the Plan of Subdivision is not certified, pursuant to the provisions of the Subdivision Act 1988, within two (2) years of the date of issue.

1. Prior to the certification of the Plan of Subdivision, any new street names shown on the plan are to be approved by the Responsible Authority.
2. Prior to Certifying the Plan of Subdivision, a drainage easement of sufficient width to provide for a 1 in 100 year storm flow with a minimum width of 4 metres is to be shown on the plan over the existing or proposed overland flow path on the subject site to the satisfaction of the Responsible Authority.
3. Prior to Statement of Compliance being issued for Stage 1, Hoddle Street must be widened on the western side, including drainage and barrier kerb and channel, to a pavement width of 6.0 metres across the frontage of the subject site, and concrete vehicle crossovers for Lots 1 - 5 must be constructed in Hoddle Street to the satisfaction of the Responsible Authority. The section of subdivision road between Hoddle Street and the property boundary must be constructed with an appropriate splitter island.
4. Prior to a Statement of Compliance being issued, the subdivision roads must be fully constructed, including drainage, and kerb and channel to a width of 7.2 metres between the backs of kerbs, to the satisfaction of the Responsible Authority. A modified T intersection traffic calming treatment, favouring the southern leg of the internal intersection, must also be constructed as part of the road construction.
5. Prior to a Statement of Compliance being issued, a concrete vehicle crossing must be constructed for each lot, to the satisfaction of the Responsible Authority.
6. Prior to a Statement of Compliance being issued, a concrete footpath 1.4 metres wide must be constructed on one side of each subdivision road and on the west side of Hoddle Street for the full frontage of the review site to the satisfaction of the Responsible Authority.
7. Prior to a Statement of Compliance being issued, piped drainage must be constructed to drain all lots and the external catchment to the satisfaction of the Responsible Authority.
8. Prior to the commencement of road and/or drainage works as required by this permit, civil engineering construction plans and an estimate for the works shown on these plans must be submitted together with a checking fee to the value of 0.75% of the estimated cost of these works, for formal approval.
9. Prior to a Statement of Compliance being issued, an inspection / surveillance fee to the value of 2.5% of the cost of the road and/or drainage works must be paid to the Responsible Authority to the satisfaction of the Responsible Authority.
10. Prior to a Statement of Compliance being issued, advice must be received from the relevant Electricity Supply Authority that the developer has agreed to fund the installation of street lighting at the intersection of the subdivisional road and Hoddle Street to the satisfaction of the Responsible Authority.
11. Prior to a Statement of Compliance being issued, street trees in accordance with the landscape plan must be planted to the satisfaction of the Responsible Authority.
12. Prior to approval of road and drainage construction plans for the permitted subdivision, a drainage strategy must be submitted to the Responsible Authority for approval. The drainage strategy must show how all drainage runoff is to be controlled and must include catchments within and external to the subdivision where these catchments are deemed to be affected by or have an effect on the subdivision.
13. Prior to the commencement of any works for the subdivision a Construction Management Plan must be submitted to and approved by the Responsible Authority and, when approved, will be endorsed to form part of the permit. Drawings in the plan must be to scale with dimensions (where appropriate). Three copies of the Construction Management Plan must be provided. The plan must be to the satisfaction of the Responsible Authority and must address:
    • (a) The proposed provision for traffic management and signing for the duration of the works and must meet the requirements of the A.S. 1742.3-2002 "Traffic Control Devices for Works on Roads".
    • (b) Methods to protect and manage the Tree Protection Zones provided in accordance with condition 3.
    • (c) Cleanliness of vehicles entering and exiting the site (it must include, but not be limited to, the transport of weeds and tracked mud, dirt or debris to or from the site).
    • (d) Minimisation of effects of erosion.
    • (e) Stockpiling of materials.
    • (f) Parking of vehicles.
    • (g) Controlling dust.
    • (h) Preventing sediment laden run-off discharging directly or indirectly into drains or watercourses. Pollution or litter traps must be provided on site.
14. Prior to a Statement of Compliance being issued, the existing dam(s) on the site must be filled with appropriately compacted fill to ensure that adequate drainage and suitable filling are provided in accordance with AS 3798-1996 "Guidelines on earthworks for commercial and residential developments". These works are to be inspected & certified as satisfactorily completed by a suitably qualified engineer, to the satisfaction of the Responsible Authority.

1. Easements in favour of Mulitnet (Assets) Pty Ltd must be created on the plan to the satisfaction of Multinet Gas.
2. The plan of subdivision submitted for certification must be submitted to Multinet Gas in accordance with Section 8 of the Subdivision Act 1988.

1. Enter into an agreement with SP Electricity Pty Ltd for supply of electricity to each lot on the endorsed plan.
2. Enter into an agreement with SP Electricity Pty Ltd for the rearrangement of the existing electricity supply system.
3. Enter into an agreement with SP Electricity Pty Ltd for rearrangement of the points of supply to any existing installations affected by any private electric power line which would cross a boundary created by the subdivision, or by such means as may be agreed by SPI Electricity Pty Ltd.
4. Provide easements satisfactory to SPI Electricity Pty Ltd for the purpose of "Power Line" in the favour of "Electricity Corporation" pursuant to section 44 and Schedule 2 of the Electricity Industry Act 1993, where easements have not been otherwise provided, for all existing SPI Electricity Pty Ltd electric power lines and for any new power lines required to service the lots on the endorsed plan and/or abutting land.
5. Obtain for the use of SP Electricity Pty Ltd any other easement required to service the lots
6. Adjust the position of any existing SP Electricity Pty Ltd easement to accord with the position of the electricity line/s as determined by survey;
7. Set aside on the plan of subdivision Reserves for the use of SP AusNet for electric substations.
8. Provide survey plans for any electric substations required by SPI Electricity Pty Ltd and for associated power lines and cables and executes leases for a period of 30 years, at a nominal rental with a right to extend the lease for further 30 years. SPI Electricity Pty Ltd requires that such leases are to be on the title by way of a caveat or a notification under Section 88 (2) of the Transfer of Land Act prior to the registration of the plan of subdivision.
9. Provide SPI Electricity Pty Ltd a copy of the plan of subdivision submitted for certification that shows any amendments that have been required.
10. Ensure that all necessary auditing is completed to the satisfaction of SPI Electricity Pty Ltd to allow the new network assets to be safely connected to the distribution network.

1. That the applicant enters into an agreement with Telstra or other licensed Telecommunications carrier for the satisfactory provision of telephone cable reticulation to one (1) metres into each allotment created.
2. That the applicant pay to Telstra, the reasonable costs of any works necessary, as a result of the subdivision to remove or alter the position of any existing facility on the subdivision, or any adjacent land or Government Road pursuant to clause 53 of schedule 3 of the Telecommunication Act 1997.
3. The plan of subdivision submitted for certification must be submitted to Telstra in accordance with Section 8 of the Subdivision Act 1988.
4. Set aside on the plan of subdivision, reserves/s satisfactory to Telstra for Telecommunication substations if required.

1. The subdivision shown on the endorsed plan must not be altered without the consent of CFA.
2. Operable hydrants above or below ground must be provided to the satisfaction of the CFA.
3. The maximum distance between a hydrant and the rear of a building envelope (or in the absence of a building envelope, the rear of a lot) must be 1 20m and hydrants must be no more than 200m apart.
4. Hydrants must be identified as specified in 'Identification of street hydrants for fire fighting purposes'.

1. The owner of the subject land must enter into an agreement with Yarra Valley Water for the provision of water supply.
2. The owner of the land must enter into an agreement with Yarra Valley Water for the provision of sewerage.
3. Prior to Certification, the Plan of Subdivision must be referred to Yarra Valley Water, in accordance with Section 8 of the Subdivision Act 1988.

1. Prior to the issue of a Statement of Compliance, the Owner shall enter into and comply with an agreement with Melbourne Water Corporation, under Section 269A of the Melbourne and Metropolitan Board of Works Act 1958, for the provision of drainage works and the acceptance of surface and storm water from the subject land directly or indirectly into Melbourne Water's drainage system.
2. No polluted and / or sediment laden runoff is to be discharged directly or indirectly into Melbourne Water's drains or watercourses.
3. Prior to Certification, the Plan of Subdivision must be referred to Melbourne Water, in accordance with Section 8 of the Subdivision Act 1988.

Mr John Cicero, Solicitor of Best Hooper Solicitors. He called written and oral evidence from Mr John Miller, Senior Botanist of Biosis Research Pty Ltd.

No attendance. DSE offered no objection subject to consideration of various matters raised in its letter dated 9/10/07 to the Tribunal. Melbourne Water Corporation and CFA gave conditional support.

Mr Jos Gielen for himself and Ms Vicki Gielen, Mrs Margaret Thomas for herself and Ms Judith McDonald, Mr Robert Tresidder.

1. Coughlan Civil Pty Ltd opposes Council's decision to refuse its application for a 40 lot (now 38 lot) subdivision in Yarra Junction. The land comprises two lots and is a rectangular shaped piece of largely farmland having an area of 4 hectares. The site is located on the western side of Hoddle Street. Former farming land to the south and north, also in the Residential 1 Zone, has been subdivided into larger residential lots and are being developed with dwellings. Lots to the south were approved by VCAT in 2005 and average 988m2 in area.[2]
2. Following discussions between the permit applicant and Council officers after public notification, the number of lots was firstly reduced to 38 lots, then to 35 and now back to 38. At the hearing Mr Cicero suggested removing Lot 29 and combining its area with other nearby lots so as to create 37 lots in total.
3. Nearby residents support Council's refusal, primarily on the basis that the proposed lots do not meet the average lot size included in local policy and that the subdivision will result in a loss of too much native vegetation. They also raised concerns drainage, dust, traffic, footpath construction, loss of township character and the desirability of requiring single storey dwellings and limiting development to one dwelling per lot.

1. The site and surrounding land to the east, north and south are zoned Residential 1. Land to the west is zoned Rural Conservation. The boundary between the two zones also forms the Urban Growth Boundary. No overlays apply to the site or to land to the north and south, although land in the Rural Conservation Zone is also affected by an Environmental Significance Overlay.[3] A number of state and local planning policies were highlighted for my consideration.[4]
2. I undertook an inspection of the site and locality on the day after the hearing. Documents and photos submitted at the hearing have been retained on the Tribunal file.

1. I agreed to the substitution of an amended plan (identified as Drawing No: 70656pp Date 28 August 2007) which was circulated to parties on 3rd September 2007 in accordance with the relevant VCAT Practice Note.

1. I am satisfied that this land zoned Residential 1 should be subdivided into lots suitable for residential use. But two key issues emerge from such subdivision:
   1. Do the lot sizes have sufficient regard for local policy?; and
   2. Does the layout adequately protect/offset native vegetation on the site and.

1. Ms Wicks and Mr Cicero provided me with a comprehensive overview of the relevant planning scheme provisions. The four key provisions are the Residential 1 Zone, and Clauses 21.05, 22.01 and 56. Aside from general state and local policies, two specific aspects of local policy (Clauses 21.05 and 22.01) are of direct relevance.
2. In that local policy, Yarra Junction is categorised as a 'Rural Township'. The underlying theme of local policy is that any subdivision of the land should help to maintain and enhance the rural setting and compact form of rural townships, and that the design of any new subdivision recognises and responds to existing physical, environmental and visual characteristics of the site and surrounding area. It is policy at 22.01-4 that all subdivision in residential areas comply (amongst other listed matters) with the following:
   • In a Residential 1 Zone within Foothills Residential Areas or Rural Townships, the average size of lots in any new subdivision not be less than 1,000 square metres, except if the proposal complies with the policies for medium density housing.
3. Mr Cicero went to some length to discuss Clause 22.01 and in particular the 1000m2 average lot size and the relevance of the medium density provisions. While I understand the point he was trying to make, I am not convinced that it makes any material difference in deciding to whether this subdivision responds to the site context. This site is bordered to the north and south by subdivisions which contain lots approximating an average 1000m2 in area. This land and the adjoining land to the south are at the southern fringe of Yarra Junction Township and both abut a Rural Conservation Zone to the west. The specific site context is such that in my view there is no justification for significantly reducing the average lot size below the 1000m2 specified in policy at Clause 22.01-3. I accept that this policy is not mandatory and agree with Mr Cicero that it is just one of many relevant policies that must be weighed, including those State and local policies that encourage urban consolidation and more efficient use of fully serviced land.
4. Although there was some criticism by residents that the 988m2 average lot size approved by VCAT for the land to the south (36-38 Hoddle Street) was less than the 1000m2 referenced in Clause 22.01-4, in my view such a minor variation has no material effect on the existing urban character which local policy seeks to maintain. In contrast, the average lot size in this 38 lot subdivision is 872m2(or 895m2 if, as suggested by Mr Cicero, Lot 29 is removed and its area combined with the remaining 37 lots). The key question then is: at what point or at what threshold does that variation begin to adversely impact on the existing rural township character that is sought to be maintained?
5. My inspection enabled me to experience at first hand this rural township character and to assess the proposed subdivision in that context. Yarra Junction has retained a relatively compact form based along the main roads leading to the centre, has a mostly quite clearly defined edge and has not sprawled out endlessly into the surrounding rural areas. The older areas located primarily on the higher land south of the Warburton Highway, along the Powelltown Road and between these two roads are on mostly smaller lots.
6. I have not been persuaded why local policy should be given less weight in this case. Indeed I am not sure why the permit applicant has persisted (through 4 iterations) in creating lots which are less than that advocated by local policy. Although application of this policy has to be balanced against the full suite of relevant policies (including those set out in Clause 12 - Melbourne 2030), the whole thrust of local policy is to retain compact rural townships with their distinct village-like character and environmental features while providing for range of housing types in appropriate locations.
7. An underlying planning principle for all subdivision and development is that it be responsive to its site and context. That context can be formed by existing development and the subdivision pattern, and by planning controls and policies giving emphasis to matters deemed important by the Council (such as neighbourhood character, intensity of development, building height, setbacks, views, protection of heritage assets).
8. I have already made reference to the desirability of providing larger lots to retain the character referred to in local policy. If I adopt a 1000m2 average lot size the total yield is around 33 lots. Although the exact number of lots was not specified at the hearing, Council and residents were clear that they would be prepared to support a subdivision based on lots averaging 1000m2 in area. I consider that larger lots would better fit with policy seeking to maintain the distinct village-like and generally lower density character of this rural township. I also consider that a subdivision of 33 lots strikes a good balance between competing policies such as those I have already referred to, including those requiring the consolidation of urban development and the efficient use of serviced land (such as this land in the Residential 1 Zone located within the Urban Growth Boundary).

Native Vegetation removal and the three step approach

1. The higher western end of the site contains some significant stands of native vegetation and there is a single Eucalyptus fulgens located on the northern boundary about midway along the boundary. Other scattered groups of native trees exist elsewhere on the site. Both Ms Wicks and Mr Cicero made reference to Villawood[5] which in many respects is the seminal case dealing with native vegetation issues and subdivision of land zoned Residential 1. Perhaps the key point in Villawood is made in paragraph 55 where the Tribunal commented that:
   1. For example, with respect to urban development, the government has imposed urban growth boundaries to curtail the spread of urban growth thereby limiting the supply of land for residential development. It is unreasonable to then expect that this land will not be developed for urban purposes at densities designed to optimise use of a scarce resource because vegetation on the land will be lost. If there is highly significant vegetation on the land that should be protected, then this part of the land should be brought into public ownership where its long-term management and protection can be assured. In larger subdivisions, the loss of vegetation can be minimised by designing subdivisions so that vegetation is incorporated into public open space. But in all other aspects it should be assumed that 100 percent of vegetation will be lost. In then calculating offsets to compensate for the vegetation lost, a realistic and practical offset plan should be approved to ensure that the costs associated with providing the offsets do not adversely affect other strategic planning objectives, such as affordability and urban consolidation.

1. As part of the ongoing refinement of the permit application, Biosis Research was engaged to undertake a flora and fauna assessment and a report was produced in March 2007. At the hearing Mr John Miller (Senior Botanist with Biosis) gave expert evidence about flora and fauna issues and dealt with issues arising from applying the Native Vegetation Framework. I do not intend to reiterate all his findings but in essence they are:
   1. The site contains a 1.4 ha remnant of modified 'Lowland Forest' Ecological Vegetation Class (EVC).
   2. No flora or fauna of national conservation significance, one flora species of state conservation significance and no fauna species of state significance was recorded on the site. There may be present two flora species of state significance (Lacy Wedge-fern and Veined Spear-grass)

NB. In verbal evidence at the hearing Mr Miller advised that on a recent visit he did not find either of these species, although given the time of the year he would have expected to see them if they were on the site.

1. Although native vegetation will be retained as part of the subdivision, for the purposes of calculating a Net Gain offset, it is reasonable to adopt the DSE approach of assuming total loss and therefore allow an offset of 0.6 habitat hectares. This offset can be provided within the same EVC although a suitable offset site has not yet been finalised.

NB. Villawood allows that off set to be approved as a 'secondary consent - condition 2 is based on the relevant Villawood condition.

1. That a 15 metre wide vegetation protection zone be provided along the western side of the site and around the Eucalyptus fulgens to encourage long term protection of that vegetation.
2. Include building envelopes (as now shown on plan) for the 6 western most lots (Lots 14, 15, 16, 27 and 28).

1. Although the Department of Sustainability and Environment (DSE) did not attend the hearing, a letter dated 9 October 2007 and signed by Peter Watkinson, Regional Director Port Phillip was sent to the Tribunal outlining the Department's position on the permit application. The Department offered no objection to the proposal subject to the inclusion of certain conditions, including a 10 year management component for any off-set areas. Condition 2 deals with off sets; part (g) deals with implementation time frames and I have included a 10 year management period as suggested by DSE.
2. Having regard to the commentary in Villawood, the evidence presented by Mr Miller, the written comments of DSE and my site inspection, I am satisfied with the approach taken towards native vegetation on this site. Although a good feature of this subdivision is the fencing off of land containing native vegetation along the western boundary and of an area around the Eucalyptus fulgens, it is sensible to assume a 100% loss of vegetation for the purposes of providing net gain off-sets. Although an off-set site may not yet have been secured, I am confident that an appropriate site can be obtained in the same EVC and that approval can take place using the secondary consent provisions as discussed at length in Villawood.

1. Nearby residents made submissions about drainage, dust during construction, traffic impacts on Hoddle Street, footpath construction, fencing and the desirability of requiring single storey dwellings and limiting development to one dwelling per lot. Although I have not discussed each of these points, I am satisfied that the permit conditions deal adequately with matters such as drainage, dust control, traffic impacts, footpath construction and limiting future subdivision and number of dwellings per lot. Fencing along the western side was discussed at the hearing and there is permit condition that requires a fence along the eastern side of the 15 wide vegetation protection zone. The subdivision does not trigger a need to replace the existing farm style boundary fence - which is separated from future dwellings by the fenced off vegetation protection zone.

1. In assessing Council's draft permit conditions I have made a number of changes to reflect discussion about them at the hearing. I have deleted notes as these can be included in a covering letter to the permit. I have also included a set of conditions for SPI Electricity since inexplicably these were not included on the draft conditions circulated by Council (these are based on the SPI Electricity conditions included in the permit for 36-38 Hoddle Street, except that I have included an additional condition (condition 34) which was included on a more recent subdivision approval in Cardinia Shire).

1. My site inspection enabled me to gauge at first hand the attributes of the review site and its relationship with adjoining land. I am satisfied that subdivision of the review into 33 lots is consistent with clearly enunciated local policy and that on balance, the creation of 33 lots is an appropriate scale of subdivision for this residentially zoned land located between existing similarly subdivided land.

1. I will therefore direct that a permit issue subject to conditions.

[1] In accordance with Section 4 (2) (d) of the Victorian Civil and Administrative Tribunal Act 1998 a failure to make a decision is deemed to be a decision to refuse the application.

[2] Arizona Properties Pty Ltd v Yarra Ranges SC [2005] VCAT 1772 (24 August 2005)

[3] A permit is required for Subdivision of land in the Residential 1 Zone.

[4] Other relevant Planning Scheme provisions include Clauses 11, 12, 14, 15.09, 16, 21.05, 22.01, 52.17, 53, 56 and 65.

[5] Villawood Properties v Greater Bendigo CC (Red Dot) [2005] VCAT 2703 (20 December 2005)